It appears that on or about December 20, 2017 Delta Airlines updated their SkyMiles Program Rules to include a section entitled “User-Generated Social Media Image Rights” whereby you would grant a very broad license for use of your image simply by using the hashtag #SkyMilesLife and/or #DeltaMedallionLife on your social media channel.

By tagging photos using #SkyMilesLife and/or #DeltaMedallionLife, user grants Delta Air Lines (and those they authorize) a royalty-free, world-wide, perpetual, non-exclusive license to publicly display, distribute, reproduce and create derivative works of the submissions, in whole or in part, in any media now existing or later developed, for any purpose, including, but not limited to, advertising and promotion on Delta websites, commercial products and any other Delta channels, including but not limited to #SkyMilesLife or #DeltaMedallionLife publications.

By broad I mean pretty much all but handing over the copyright on the image. The rights granted are perpetual, which means forever and ever and ever. The rights granted are for ‘any media now existing or later developed’ which would likely includes so much more than your run-of-the-mill social media channels like Facebook, Instagram, Snapchat, and Pinterest. It’s a ‘world-wide’ grant so imagine all those social media channels in other countries we in the US don’t know (or care) about. There’s also the ‘create derivative works’ language which gives Delta the right to turn your little photo into a magazine cover, back side to playing cards distributed in First Class, prints for sale in their online shop, and so much more. And then there is the ‘for any purpose’ language which is as it states, for any purpose. Note there is nothing in there about providing attribution to the copyright holder.

So, Delta, you want to take the image and do whatever you wish for infinity without providing any compensation, but you also want to pretend you’re the one who took the photo? Nice! I’m pretty sure that’s not in the social media best practices playbook.

And while this is an update for Delta’s program rules, this is not the first time I’ve seen this concept. It is, however, the first time I’ve seen it slid into rules specifically designed for members of a specific program. In early 2017 I started to see brands adding language to the Instagram profiles that stated if you used “their hashtag” your use of that hashtag alone would be your permission for them to use your photo. In fact, my first experience with this idea of having rights to what is hashtagged was with Marriott whose social media people sent me a private message on Instagram asking for permission to use a photo I took in Seattle. While Marriott was not automatically claiming rights, the release they linked to was very broad. Since that time, I started looking for brands that try to auto-claim rights solely through use of “their” hashtag. There are quite a few.

This situation with Delta, though, is quite different because they are incorporating these terms into their program rules for their SkyMiles membership. Presumably Delta has advised their SkyMiles members of this program update seeing that’s it’s a significant grant of rights that most, if not all, program members would think is a material change to the rules. However, I wouldn’t be so sure. See the image below? Notice how there is no mention of this significant grant of legal rights update to their program rules.

Let’s get to the questions:

Can Delta do this? Short answer is YES, they can do this. It’s their program and they can have whatever rules they want. OK, they can’t really have any rules they want, all their rules have to comply with the law. But there is no law that says ‘thou shalt not add in language to force me into either being a member and giving you these broad rights to my photos or having to give up my membership’. If you want to be part of the program you abide by all legal program rules.

Why would Delta do this? I have no idea. Considering one would think such a significant program rule change would have gone through legal and at least one lawyer would say this is a stupid idea, one would think it would have been given the kaibosh long before Delta has to deal with a social media backlash.

Is this legal? Again, short answer is YES. There are no laws that prohibit private businesses from including rights grants in their program membership requirements. Copyright law does not require that payment or other compensation be provided to grant someone a license. And when non-exclusive rights are transferred copyright law does not mandate that the license be in writing, much less require that the grantor somehow affirmatively consent to such grant. However, there may be an issue with (i) notice to members and (ii) the application of this policy to people who are not members of their program.

What can you do? If you are a member of the Delta program you can leave the program. If you don’t leave the program you may be giving your consent to be bound by this new term. The Delta program rules state “Delta and its program partners reserve the right to change program rules, benefits, mileage regulations, Award Travel, Medallion qualification requirements and levels, fees, Award prices, Pay with Miles terms and conditions, and special offers at any time without notice.” and despite this being quite a significant change in the rights of your intellectual property Delta’s position would likely be ‘take it or leave it’. However, this term is not your typical program change. This new license greatly impacts your legal rights to control how your intellectual property is used and it’s quite possible a court would determine that stripping such autonomy from members is not permitted.

To whom does this policy apply? Seemingly, it would only apply to Delta SkyMiles program members since it’s incorporated into those program rules. However, since minors can be members of the SkyMiles program, it’s not clear if such a significant grant of rights would apply to minors without affirmative consent from a parent or guardian. Non-members can not be bound by membership rules. However, it’s unclear if Delta’s social media team will attempt to determine if those who use the #SkyMilesLife and/or #DeltaMedallionLife hashtags are members of the program.

What does Delta currently do if they want to use your photo? On Instagram, Delta will comment on a photo and leave this link – http://ms.spr.ly/6178rI5Jo – and ask you to reply with #DeltaAgree. I see this type of ask all the time. Never mind that it’s not a clickable link and cutting and pasting on Instagram is a pain in the neck, I see brands do this all day, every day. And I’m skeptical that anyone actually reads the terms before agreeing. See below what this looks like.

So, will using the hashtags make you legally liable to Delta?

I don’t think “legally liable” is the correct term here. Will using the hashtag cause you to relinquish very significant legal rights to Delta without compensation or attribution? If you’re a member of their SkyMiles program, Delta seems to think so. I’m pretty sure, though, there are plenty who disagree with Delta’s position on this. Relinquishing such significant legal rights, perhaps without actual knowledge of such transfer, would seem to violate long-held public policies surrounding copyright ownership and licensing.

For those who are not members of the SkyMiles program, it would be very difficult for Delta to try and claim these program rules apply to you. However, Delta, and many other companies large and small, do ask people to assign their rights by agreeing to license terms they may or may not read. The common sense advice here is don’t agree to let a brand use your image unless you understand what you’re agreeing to.

Keep in mind that with these hashtag programs brands are undertaking they’re potentially interacting with minors and not determining if the user is a minor. While the hashtag program may have separate terms that require the individual to be at least 18 years old (despite some jurisdictions in the US, Canada, and around the world having an age of majority greater than 18), social media users can (legally) be as young as 13. And incase you didn’t know, contracts with minors are unenforceable unless their parent or guardian also provides consent.

What does the indemnification clause mean in these terms?

Even though this hasn’t been part of the discussion, in the new Delta program rules there is an indemnification clause. There is also one in the terms link their social media team uses on Instagram. What this term means is that YOU are liable for and must cover any liability Delta faces for using your image. So if your image infringes copyright or violates a person’s right to privacy or their right to publicity but Delta uses it and they get sued or suffer some sort of loss, Delta can come to you and require you to reimburse them. Crazy, right?!

What to do? What to do?

Let your voice be heard. If you don’t like this, let the brand(s) know. They’ll stop doing it if enough people complain.

Some people like to call it ‘content curation’. Really, it’s just a fancy way to say you want to share work that is not yours. In theory, this sounds like a really nice thing, sharing someone’s work and giving them an audience beyond their own. In reality, though, it’s intertwined with copyright law; which makes what should be easy, hard. Copyright infringement became easier, as well as easier to detect, as the internet became a daily staple.

The general rule is that copyright, in the US, at least, immediately attaches to whatever you create. Although that’s totally simplistic, most people understand copyright law as a protection against other people using their work, be it a photo, drawing, an article, fine art, music, and more. Unfortunately, there are very detailed laws about what is and is not copyrightable, and the few exceptions to infringement, that it’s not uncommon for the lay person, and even most lawyers, to have just enough knowledge about copyright to think they understand it when in truth they don’t.

This leads to any number of misunderstandings when other people are sharing our content and when we want to share someone else’s work.

The first thing to understand is what is copyright and how it applies to your work. Once you know your work, or the work you want to share, is copyrighted, you need to consider your use and is it protected by exceptions such as parody or Fair Use, or is there a license that gives you the right to share or use. Seems like an easy two-step process, right? However, if you’ve ever read about or been on either end of a DMCA Takedown Notice or any other communication about copyright infringement you know it’s not that easy. Which is why I get hundreds of emails a month about this. So, to make it a little easier here are some basics about sharing other’s work.

Basic Permission

The easiest way to share someone’s work without getting into legal troubles is to get their specific permission. If you ask someone if you can share or use their work, because remember the copyright holder has the exclusive right to create other works (known as derivative works), and they give you permission you’re golden. In the age of email, you’re likely to have some form of written permission, too. Written permission is good because we all know how memories seem to fade when things go awry. Now you have permission, but understand that this permission likely isn’t carte blanche to do anything your heart desires. If you asked for permission to publish their article in your corporate newsletter, that’s all you can do. If you want to incorporate their song into your video, be clear what you mean about that and how you intend to distribute the video. Keep in mind, you’ll always want to cite the source and provide attribution to avoid any claim of plagiarism.

Ways to obtain permission: verbal (not always good if something goes wrong) or in writing. Writing can be a formal email or something as simple as a tweet. Many news outlets will have conversations on twitter, which I would hope they would save should they ever need to refer back.

License

Terms of Service or Terms of Use

When it comes to general online sharing, we’re fortunate there are licenses built into nearly every major platform just for this purpose. Sharing something on Facebook that is already posted there is as easy as using the ‘Share’ function. If you’re on Pinterest and want to share something, using the platform’s coded features to repin, share on Facebook, post to Twitter, or send by email is all covered by a license granted in the terms of service. When it comes to YouTube, many people misunderstand the ‘embed’ feature and get bent of out shape when their video shows up on some other website. If you’ve enable the sharing and embed features on your YouTube video, you’ve given other YouTube users the right to share your video on many different platforms. No, it doesn’t give people the right to do anything with it, but it’s important to understand what rights you’re giving others just by agreeing to the terms of service or use.

For blog post and article sharing, if the website has a share function, usually identified with various icons for the different platforms, inherent in loading up that feature the website owner or their agent is granting a license to readers to share their work by clicking on those icons or share links. For example, I have a plugin that I use which has the different social platform logos so you can share my post on the different platforms. If you want to share my article on, say, Facebook, by clicking the link your share is protected by the license I’ve agreed to grant. You may see a “click to tweet” embed on a post, encouraging you to share a specific snippet of the article. Again, the author, by using the software, is granting you a license to share their work.

You see that for basic ‘in line’ type sharing these links work rather seamlessly. The author gets their work shared to a new audience and you don’t worry about being sued. Pretty good win/win, right? But what if you want to share their entire work and there is no link or icon for you to simply click?

Creative Commons

I won’t go into Creative Commons too much because I have written about Creative Commons in plain English, which is quite comprehensive. Creative Commons is a licensing scheme where creators give other people permission to use their work in certain ways. Some people just want attribution and you can do whatever you want with their work, commercial or not, while others will let you use the work for non-commercial purposes. Understanding these licenses is important so you can ensure that what you want to do is covered by the license.

Formal License

If you want to use the work for something more than basic online sharing and an informal email exchange isn’t sufficient and there is no attached license, you’ll likely need something more formal. With a formal written license, you and the copyright-holder can detail the exact terms of how you can use their work. Like any contract, there are pros and cons so you may want to involve a lawyer if you’re entering into a formal copyright license.

Link Sharing

The cool thing about many online social sharing platforms is that if you add a URL, the site will pull a small image and some metadata, making it look very professional. This gives the reader something to connect with so they’re compelled to click. A URL hold a lot of information and social sharing platforms will grab basic info, in most cases, making the link more click-able. A URL is not subject to copyright so sharing one doesn’t raise copyright infringement concerns. Courts have settled the copyright question about thumbnail images for non-commercial use, saying they’re protected by Fair Use. The metadata that is pulled is often designated, and while it has not been litigated, most understand that pulling designated metadata or grabbing the first 100-or-so characters is covered by copyright fair use. So, go out and share links and pass along good stuff!

Adding Commentary

Sometimes I’ll have people ask me if they can cut/paste an entire article because they want to comment on the article. The easy answer is ‘no’. If you want to respond to or add your commentary to an article, perhaps you can take a few short quotes to give context, or reference certain statements. All with attribution, of course. Generally, though, if you want to comment you can leave a comment in the comments section, if they have one, or you can write your commentary and link to the target article or blog post.

Specific Question About Images

One question I get a lot is whether someone can take the image from the article they want to discuss. The simple answer is ‘no’. Of course, there is a more complex answer, but it’s often best not to take the image from an article even if you’re sharing about that specific article. The problem with taking the image is that it could land you in legal trouble, facing allegations of copyright infringement. Maybe you won’t get sued, but you could face a DMCA Takedown notification or a demand for payment for not obtaining a license. Even if photo credit is provided, rarely do we know what arrangement was made with regard to the image. Perhaps it’s the author’s and they don’t really mind. It could be a stock photo and they licensed it for their own use. They could have a written agreement with the creator. Without knowing, using the image could be problematic. Sure there may be a fair use argument if you’re specifically addressing the image and offering it up for your critique, news, or education purposes. However, that’s not what we’re talking about; we’re talking about the discussing the article, not the image. If you don’t want to find your own photo and just want to use theirs, it’s best if you don’t.

Conclusion

In this sharing economy, it’s generally good to share other people’s work with your community. But, as with most things, there’s a right way and a wrong way. So while the golden rule is a great start, keep in mind that copyright law also comes into play and could impact how and how much you intend to share. And even though it may seem like everyone else is doing it “the wrong way”, don’t give in to the temptation.

Live streaming has been around for a number of years. But until Meerkat and Periscope, and now Blab, we didn’t have a very portable way to live stream video. There was Google Hangouts, which is a live streaming service, but the mobile app didn’t really make it easy for mobile and active use. You could record short video and share them, a la Vine and Instagram Video. But there wasn’t a viable option for being out in public, your office, at home, or pretty much anywhere you wanted, and share audio and video of what was going on around you.

For those who aren’t exactly sure what live streaming is, it’s basically the ability to broadcast audio and video as it happens. It’s like having your own channel. Any time you want to “go live” you can.

As with any new technology or platform, there are bound to be legal concerns. That’s no different when it comes to live streaming. When it wasn’t portable, it wasn’t as prolific. Still there were legal issues with regard to trademark and copyright, but the learning curve for the legal issues wasn’t as steep since those using the live stream service were often business people who had a basic understanding of these legal issues.

Now that live streaming is available to anyone in the world with a smartphone, the legal concerns are much more relevant to the average person. There are so many great uses for live streaming. The key, though, is that for commercial use there are significant legal concerns. And even for personal use, the legal concerns should be taken into consideration. While the somewhat fleeting nature of live streaming may make you think copyright isn’t much of a concern, there is nothing in the law that say how long a copyrighted work must be used without permission or exception to qualify for infringement. Add to that the ability to rebroadcast, or upload to a more static video service such as YouTube, and the temporary aspect of live streaming goes away.

Key Legal Concerns With Live streaming

Copyrighted Content – Meerkat and Periscope, as well as Blab and Google Hangouts, have Terms of Service that prohibit users from violating the copyright of others. This is part of the Safe Haven provisions of the DMCA and is more for their protection than yours. If you, as a user, violate the copyright of someone then it’s on you, not them. This means, of course, that using copyrighted music in the background would be a violation of the TOS, in addition to any copyright.But there are other copyright issues that many don’t think about, such as the copyright of artwork, performances, written materials, and architectural works. Incorporating a copyright work into your live stream exposes you to liability you may not have intended. Ever wonder why on some TV shows the artwork on the walls is pixellated? It’s because it’s a copyrighted work and they didn’t get permission. That’s easy to do when you have the ability to edit. However, with live streaming there is no ability to edit and if you infringe someone’s copyright there can be consequences you didn’t anticipate.

Commercial or Private Use – if your live streaming project is for commercial use there are a host of legal concerns. Not only are there copyright, trademark, and trade secret issues to be aware of, but you’ll need to know about privacy laws, publicity rights, loitering or trespassing, and location releases.If you’ve ever been out and have seen a movie, video, or ad being filmed or shot you likely recall there being an area that was cordoned off. They do that for a number of reasons, one of which is to make sure there are no random people in the background. It’s why when extras are needed for crowd scenes or background they hire people. Because when you hire people you can get them to sign away their rights to sue you.When it comes to trademarks and live streaming for commercial use, you really do need to learn how to stay on the right side of the law. The basic rule is that unless you own the trademark, it should not be visible in your live stream. Of course, there are exceptions, but for the most part if you’re live streaming for commercial use avoid any third-party trademarks.

Location Concerns – regardless of whether you’re live streaming for personal or commercial use, you have to make sure you have the right to be where you’re filming. If you’re on your own property, that makes it simple.However, if you’re in public or on private property there are legal concerns to manage. On public property, you’re likely safe to use the property. That’s not to say you have an absolute right. For example, the street may be public property but you can’t obstruct traffic, the courthouse is public property but there are limitations on what you can do, and your child’s public school may be public but they also have the right to limit your actions for the safety and security of others.For commercial live streaming many cities require a permit, so think about your use. If you’re an influencer and your live streaming is sponsored you may have crossed into commercial use and could be subject to those additional requirements.Trespassing and loitering may seem like petty offenses. In today’s world, though, you’ll want to be aware of these things. If you need to get permission, it’s always best to get permission in writing. Keep in mind, though, that permission to physically be on the property is not the same a release of rights to use the property in your live stream.

Privacy and Right of Publicity – This ties in with Commercial vs. Private use as well as Location concerns. Privacy is the right to control information about you, regardless of how it’s shared. The Right of Publicity is the right to protect your name and likeness from being exploited for commercial gain. Sometimes these rights overlap, and other times one exists while the other does not. You may not have privacy rights when you shop at your favorite store, but they don’t have the right to use your name or likeness for commercial gain. Privacy and Rights of Publicity are state law matters, which adds to the confusion because some states are more lenient than others. If you are broadcasting your live stream from a public space, and are doing so for commercial purposes, you may find yourself in legal hot water if you do not obtain consent from people who are captured during your broadcast.This is a very broad definition of commercial, too. Don’t just think of big brands. Commercial purpose would include influencers who are being paid to live stream; social media professionals who are live streaming to sell their goods or services; musicians/artists/authors broadcasting in an effort to sell their goods or services; and a host of other situations. If you’re live streaming solely for personal use, your main concern will be the privacy rights of others. Whether you’re in a public or private setting, there are a variety of privacy rights you need to be aware of. It makes sense not to live stream in the public bathroom, but given the number of people taking photos (which I’m going to assume are selfies, because otherwise I’ll freak out) in public bathrooms I’m not so sure everyone understands the privacy rights of a public bathroom. If you’re at a public event like a music festival, state fair, or marathon evaluate your surroundings so you’re not right in front of the port-a-potties. They may be in “the public” but there is an expectation of privacy. And that’s the magic phrase – “expectation of privacy”. If the average person would have an expectation of privacy, even if they are in public, then live streaming in that area should be off-limits.

Disclosure – For corporate brands on their own channel, it’s pretty obvious most of the time since the brand isn’t a person. It’s more like an infomercial. But just like an infomercial, there are FTC laws related to truth in advertising that need to be considered. If a celebrity, influencer, brand ambassador, or the like is “taking over” the brand’s live stream viewers needs to be aware that the person is a paid endorser. Same thing for influencers. If you’re doing a sponsored live stream, disclosure needs to be made. Exactly how is not explicitly known. Like much of social media, the logistics of FTC disclosure is a bit hit and miss. Ultimately, though, you’re responsible for making sure viewers know that what they’re watching is some type of paid content. Whether you call it sponsored, advertorial, native advertising, marketing, or plain ol’ advertising it should be very clear to the audience that the content is there because of a business relationship.

While live streaming is new, shooting video is not. Many of the same legal concerns related to making a commercial video relate to live streaming. In addition to the above, if your product or services is one that is regulated you’ll want to consider those as well. For example, the FDA has requirements and limitations regarding claims for food, drugs, and supplements. Various government agencies monitor claims related to the medical, legal, and financial professions. And finally, don’t forget safety. When live streaming in public you may be moving around so be careful. And, of course never live stream while driving.

I hope this shed light on some of the legal concerns you should consider when live streaming, especially for business. Live streaming can be a very engaging way to market and sell your products, services, or business. But just like other aspects of running a business, you need to consider the legal issue before starting your live stream.

I think it’s in high school when most of us had the concept of plagiarism shoved down our throat. It was all part of the lessons about citations and the MLA format or the Chicago Style Manual or whatever it was your teacher used to put the fear of getting an F in you. And, of course, this was likely before this whole internet thing controlled our communication. Still, too often, there is confusion about infringement of copyright and plagiarism.

Plagiarism is not illegal in the United States. Despite the sometimes very harsh consequences, plagiarism is a moral issue not a legal one. Given the spectrum of morality practiced by people around the globe, plagiarism can range from a small nuisance to a serious offense with significant consequences.

While many companies don’t have a policy regarding plagiarism, certain industries follow very strict ethical codes. As consumers we also expect a certain level of professionalism from those in fields where information and words are the equivalent of gold. And while passing off someone else’s work may not seem like a big deal compared to things like insider trading, corporate espionage, or trade secret theft, most educated people do consider plagiarism to be important.

What is copyright infringement?

Copyright infringement can only happen if the underlying work is copyrighted. While copyright is automatic, it doesn’t apply to every single thing we create. So, yes, there are a host of super cool things that you can not copyright. Things like lists, useful items, choreographic works (unless they have been recorded), fashion, ideas, and, for the most part, works created by the US Government.

Copyright infringement is a legal framework for pursuing damages against someone who wrongfully violates the exclusive rights you have with your copyright. That’s kind of the lawyer-ish way to say, if someone uses your copyrighted work without permission or under a covered exception such as Fair Use, you likely have a case and can sue them (or if it’s online also file a DMCA Takedown Notice and get their posting taken down).

Like copyright, copyright infringement is automatic. If your copyrighted work is used without your permission in a way that violates your exclusive rights, the person or organization using it is engaging in copyright infringement. The key is that (1) you must have a copyrighted work, (2) it is used without your permission or under a valid exception, and (3) in a manner for which you have exclusive rights.

Let’s break this down:

1. The work must be subject to copyright. Remember, there are a number of things that can not be copyrighted.

2. You must be the copyright holder. Your copyrighted work does not have to be registered, but that helps if you decide to seek damages. The copyright can’t be expired (which is not usually important with regard to current works but keep the year 1978 in mind because that’s a key date of delineation in Copyright).

3. Your copyrighted work must be used without your permission or authorization and not covered by an exception. This means you did not provide permission or if you had but have since legally withdrawn permission, there may be an infringement. Keep in mind that if you had put your work out under a Creative Commons license those are non-revokable. (Did you know that about Creative Commons licenses?)

4. The allegedly infringing use is one that is yours exclusively under the US Copyright Act. Other people can tell you they’ve seen your work online, but they can’t use the law to enforce your rights. The exclusive rights are rather broad but you’d want to ensure the allegedly infringing use falls into one of those categories.

If all four of these things are present, you likely have a copyright infringement and have a host of legal remedies available.

What is the difference between Copyright Infringement and Plagiarism?

The most significant difference is that you can sue or employ the remedies under the Digital Millennium Copyright Act (DMCA) for copyright infringement but you can’t for plagiarism. Plagiarism may overlap copyright infringement, but that’s not always the case.

Other differences include:

Copyright infringement doesn’t consider whether you were given credit. Copyright infringement can still occur even if the source, author, or copyright-holder is cited. Plagiarism only occurs if someone is trying to pass off your work as their own.

Plagiarism is a violation of moral, ethical, or organization norms not laws.

Copyright infringement only happens with regard to the copyright holder, which may not be the author or actual creator. Plagiarism is an offense against the author or creator, regardless of who may have legal rights to their work.

Plagiarism can occur even if there is permission from the copyright-holder to use the work. Permission to use the work doesn’t mean you get to take credit and pass it off as your own. Even if the copyright-holder didn’t specify anything about giving credit, you have to provide some type of attribution to avoid a plagiarism charge.

For copyright infringement that takes place online, you may be able to file a DMCA Takedown Notice. In cases of plagiarism only, the remedies available are much more limited.

Bottom Line

Both copyright infringement and plagiarism are bad. Both often play out in the court of public opinion, which likely has a greater cost than any legal judgement. Some may argue that the consequences of being found to have plagiarized a work are more harsh than damages a court doles out. Interestingly, a finding of plagiarism may stay with someone much longer than being held accountable for copyright infringement.

As a society, the value we have for makers and creators is not always consistent with actions. With the advent of social media, it’s easier than ever to be held accountable for claiming to have created something when, in fact, you didn’t. Right or wrong, we really need to move away from the premise that it’s easier to ask for forgiveness and, instead, support the value of creators and their work and ask permission and give credit.

Meet Sara F. Hawkins

I’ve been a licensed attorney for nearly 20 years & can say that I made a good choice. I’ve been practicing as a social media lawyer long before the term “social media” was coined. I have both an MBA & a JD, & did that on purpose. Read more about me »

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